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Mediation’s Future

I’ve heard a number of evangelists of the mediation world, most recently Lee Jay Berman in a talk SCMA sponsored this week in San Diego, talk about the seemingly limitless future of the mediation process. That future seems to depend on the public finally becoming more aware of the possibilities of mediation to resolve not only conflicts that have already worked their way through the court system, but also conflicts that have never even made it to court, or that might be unsuitable for court. But right now the public still seems only vaguely aware of mediation’s possibilities. People might have heard of resolving a divorce or other civil dispute out of court, but might still think that mediation is only available just prior to trial. Some might be aware that there are programs available to resolve neighbor disputes, but they are still confused by what a mediator does that is different from what an arbitrator or judge might do.

Like my predecessors before me, it is now my job to try to bring about more public awareness of mediation as an available option for resolving conflict. The question is, what is it going to take for the public to grasp mediation’s potential? The bright future for mediation always seems just within our grasp, while frustratingly out of reach. Meanwhile, mediation’s present presents a difficult and uncertain career path for many who would like to practice in the field, many more than it seems are needed to satisfy current demand for mediation services.

To try to answer that question, we might start by asking what is keeping most parties in conflict from taking advantage of mediation. Is it their lawyers, always a popular group to blame? While there has been resistance from the bar in many places to efforts to deny litigants access to the courts, and while that resistance may be motivated in part by self-interest, I have not found most American lawyers to be hostile to the mediation process. Lawyers already know that it doesn’t make sense to take most cases all the way to trial. They often welcome the opportunity to find a less expensive and less risky means of resolving cases.

Instead it may be that resistance to mediation lies deep within human nature, which resists peaceful resolution of conflict at least at first. When a person feels wronged, their first instinct is not usually to reconcile with the party that wronged them. Their first instinct is to retaliate. Clients feeling aggrieved by conflict don’t generally come to their lawyers’ office begging for the chance to make up with the other side. Lawyers file lawsuits because clients demand justice.

Then there is the elaborate structure of the legal system itself, which is supposed to provide the justice that the public is seeking, or at least to provide the certainty of resolution of conflict according to pre-determined rules of law. So when human nature, which is looking for an assessment of blame and a determination of right and wrong, encounters a system which is designed to do just that, it is only natural for people to want to seek recourse in that system. Only later when they discover the costs and imperfections of the traditional justice system, do they resort to a consensual alternative settlement process.

What is going to cause the change that people in the ADR community are seeking? It’s probably not going to be enough simply to try to spread the gospel of mediation to the public, trying to persuade people seeking answers to their conflicts, that they have the ability to resolve those conflicts themselves with the help of a mediator. It’s a message that needs to be repeated, but people are resistant to that message.

It’s probably going to take a new generation to absorb the idea of resolving conflicts in a more cooperative manner, rather than through an adversarial system based on apportioning blame according to a pre-determined set of rules. A generation that is gaining experience with peer mediation in schools, perhaps (discussed in a previous post). A generation that is growing up in what is being called the sharing economy, where interactive and collaborative tools are commonly used to solve problems. A generation grown up around the internet, which for the most part does not operate within the traditional justice system, but rather depends on communication and informal means of dispute resolution. That kind of public may eventually grow more receptive to the idea of resolving conflict by collaborative means.


Joe Markowitz

Joseph C. Markowitz has over 30 years of experience as a business trial lawyer.  He has represented clients ranging from individuals and small businesses to Fortune 500 corporations.  He started practicing with a boutique litigation firm in New York City, then was a partner in a large international firm both… MORE >

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